Kerala High Court
Haileyburia Tea Estates Limited vs John Zachariah on 25 July, 2013
Author: N.K. Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
WEDNESDAY, THE 27TH DAY OF NOVEMBER 2013/6TH AGRAHAYANA, 1935
OP(C).No. 3167 of 2013 (O)
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AGAINST THE JUDGMENT IN CMA 30/2013 of DISTRICT COURT, THODUPUZHA
DATED 25.07.2013
AGAINST THE JUDGMENT IN OS 142/2013 of SUB COURT, KATTAPPANA
PETITIONER(S):
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HAILEYBURIA TEA ESTATES LIMITED
MARAR ROAD, WILLINGDON ISLAND, COCHIN 682003
REPRESENTED BY ITS ASSISTANT GENERAL MANAGER
(FINANCE & ACCOUNTS) MR. M. SASIKUMAR
BY ADVS.SRI.JOSEPH KODIANTHARA (SR.)
SRI.ABRAHAM MARKOS
SRI.BINU MATHEW
SRI.ABRAHAM JOSEPH MARKOS
SRI.ABRAHAM VARGHESE THARAKAN
RESPONDENT(S):
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1. JOHN ZACHARIAH, AGED 47 YEARS
S/O LATE M.K. JOHN, MARIKUDY HOUSE, PAZHANGANAD KARA
KIZHAKKAMBALAM P.O, KIZHAKKAMBALAM VILLAGE
ERNAKULAM DISTRICT 683562
2. SUSAN ZACHARIAH,, AGED 42 YEARS
W/O JOHN ZACHARIAH, MARIKUDY HOUSE, PAZHANGANAD KARA
KIZHAKKAMBALAM P.O, KIZHAKKAMBALAM VILLAGE
ERNAKULAM DISTRICT 683562
3. ANNU MATHEW,, AGED 55 YEARS
W/O MATHEW JOHN, MARIKUDY HOUSE, PAZHANGANAD KARA
KIZHAKKAMBALAM P.O, KIZHAKKAMBALAM VILLAGE
ERNAKULAM DISTRICT 683562
4. MATHEW JOHN,, AGED 57 YEARS
S/O LATE M.K, JOHN, MARIKUDY HOUSE
PAZHANGANAD KARA, KIZHAKKAMBALAM P.O
KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT 683562
...2
OP(C).No. 3167 of 2013 (O)
-2-
5. REENA PAUL,, AGED 55 YEARS
D/O LATE M.K. JOHN, MARIKUDY HOUSE, PAZHANGANAD KARA
KIZHAKKAMBALAM P.O, KIZHAKKAMBALAM VILLAGE
ERNAKULAM DISTRICT 683562
6. AMMUKUTTY JOHN,, AGED 79 YEARS
W/O LATE M.K. JOHN, MARIKUDY VALAYIL HOUSE
PAZHANGANAD KARA, KIZHAKKAMBALAM P.O
KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT 683562
7. KORAH JOHN,, AGED 53 YEARS
S/O LATE M.K JOHN, MARIKUDY HOUSE, PAZHANGANAD KARA
KIZHAKKAMBALAM P.O, KIZHAKKAMBALAM VILLAGE
ERNAKULAM DISTRICT 683562
8. BINU KORAH,, AGED 45 YEARS
W/O KORAH JOHN, MARIKUDY VALAYIL HOUSE
PAZHANGANAD KARA, KIZHAKKAMBALAM P.O
KIZHAKKAMBALAM VILLAGE, ERNAKULAM DISTRICT 683562
R7,R8 BY ADVS. SRI.B.ASHOK SHENOY
SMT.C.G.PREETHA
SRI.K.V.GEORGE
SRI.P.N.RAJAGOPALAN NAIR
R5-R6 BY ADV. SRI.C.K.VIDYASAGAR
R1-R2 BY ADV. SRI.G.SREEKUMAR (CHELUR)
R3-R4 BY ADV. SRI.P.PRIJITH
R3-R4 BY ADV. SRI.P.MARTIN JOSE
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27-11-2013, ALONG
WITH OPC. 3440/2013, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C).No. 3167 of 2013 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 : TRUE COPY OF THE PLAINT O.S NO 142/2013 DATED 16-04-
2013 FILED BY THE PLAINTIFFS 1 TO 6/ RESPONDENTS 1-6
BEFORE THE SUBORDINATE JUDGE'S COURT, KATTAPPANA
ALONG WITH I.A NO 217/2013
EXHIBIT P2 : TRUE COPY OF THE COUNTER AFFIDAVIT DATED 25-04-2013
FILED BY THE PETITIONER BEFORE THE SUBORDINATE
JUDGE'S COURT, KATTAPPANA IN I.A NO 217/2013 IN O.S. NO
142/2013
EXHIBIT P3 : TRUE COPY OF THE ORDER DATED 04-06-2013 OF THE
LEARNED SUB JUDGE, KATTAPPANA IN I.A NO 581/2013 IN O.S
NO 142/2013
EXHIBIT P4 : TRUE COPY OF THE COMMON ORDER DATED 25-07-2013 OF
THE LEARNED DISTRICT JUDGE, THODUPUZHA IN CMA NOS
30 & 31/2013
EXHIBIT P5 : TRUE COPY OF THE SALE DEED DATED 01-01-2008
EXHIBIT P6 : TRUE COPY OF THE AGREEMENT DATED 19-02-2013
EXECUTED BETWEEN THE PETITIONER AND THE 7TH
RESPONDENT
RESPONDENT(S)' EXHIBITS
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NIL
//TRUE COPY//
P.A. TO JUDGE
JJJ
N.K. BALAKRISHNAN, J.
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O.P.(C) Nos. 3167 & 3440 of 2013
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Dated this the 27th day of November, 2013
J U D G M E N T
O.P.(C) No. 3167/2013 is filed by the 1st defendant in a suit for injunction. O.P.(C) No. 3440/2013 is filed by defendants 2 and 3 in that suit. An application for temporary injunction was filed by the plaintiffs in that suit. They contended that they are the title holders of the property in schedules A to G shown in the plaint, which according to them, is lying as a compact estate known as Mlamala Estate. It was stated that after the properties were purchased, the 2nd defendant was managing the same on behalf of the plaintiffs and John Kurian, who is stated to be the owner of G schedule property. Since there were allegations that the 2nd defendant was not managing the estate properly and was indulging in activities detrimental to the estate, the plaintiffs issued notice terminating the O.P.(C) Nos. 3167 & 3440/2013 -2- Managership of the 2nd defendant. After receipt of the notice, the 2nd defendant colluded with the officials of the 1st defendant - Company and entrusted management of Mlamala Estate with the 1st defendant. Plaintiffs contended that the 1st defendant has no right to manage the estate owned by the plaintiffs. The 3rd defendant is the wife of the 2nd defendant. Hence, the plaintiffs prayed for injunction restraining the defendants from interfering with the plaintiffs' possession and enjoyment of the plaint schedule property.
2. The 2nd defendant contended that he is the owner of the entire property and that he had purchased the property using his own money. It is contended that the title deed would clearly show that the plaint schedule properties are jointly possessed by the 2nd defendant and the plaintiffs and that the 2nd defendant was in management of the plaint schedule property. It was also stated in that document that O.P.(C) Nos. 3167 & 3440/2013 -3- no other person was entitled to manage the property or to harvest or sell the crops in the plaint schedule property. Since the plaintiffs are bound by the recitals in the document, the contention that the management of the 2nd defendant was terminated by the plaintiffs and so the 2nd defendant has no right to manage the estate, is unsustainable. An agreement was entered into between defendants 1 and 2 as per which the 2nd defendant had agreed to sell the green tea leaves to the 1st defendant and as such the plaintiffs are not entitled to the injunction prayed for.
3. Before the trial court, Exhibits A1 to A11 were marked on the side of the plaintiffs. Exhibits B1(a) to B1(k) were marked on the side of the defendants. The Commissioner's report was marked as Exhibit C1.
4. The trial court found that the management of the 2nd defendant was terminated by the plaintiffs and as such O.P.(C) Nos. 3167 & 3440/2013 -4- the 2nd defendant had no right to continue in management or to enter into agreement with the 1st defendant with regard to the sale of the green tea leaves. It was found that the management of the 2nd defendant was terminated because there was mis-management on the part of the 2nd defendant. The trial court found that since the petitioners are the owners of the plaint schedule property, the defendants have no right to interfere with the plaintiffs' possession and enjoyment of the estate and therefore an order of temporary injunction was passed against the defendants.
5. Appeals - C.M.A. Nos.30/2013 and 31/2013 filed by the defendants were dismissed by the lower appellate court.
6. It is vehemently argued by the learned senior counsel appearing for the petitioners that the courts below went wrong in holding that the 1st defendant was only O.P.(C) Nos. 3167 & 3440/2013 -5- having right of management and since a letter was sent terminating the management, the 2nd defendant has no right to be in management or possession of the estate.
7. Following are the points that arise for consideration:
i. Whether the plaintiffs have shown prima facie case for grant of injunction in their favour and whether the balance convenience is in their favour?
ii. Whether the refusal of temporary injunction would cause irreparable loss to the plaintiffs?
iii. Whether the judgment of the lower appellate court, which confirmed the order of injunction passed by the trial court, suffers from any legal infirmity so as to invoke the jurisdiction under Article 227 of the Constitution of India?
O.P.(C) Nos. 3167 & 3440/2013 -6-
8. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiffs during the period before the issue is finally resolved. The court has to consider all the pros and cons of the case before granting an injunction. The settled principle that may have to be taken into account is that plaintiff must show a prima facie case and it must also show that the balance of convenience is in favour of the plaintiffs. Further, it has to be seen whether the refusal of injunction would cause irreparable loss and injury to the plaintiffs.
9. The parties are referred to as plaintiffs and defendants. The 2nd defendant contended that he is the owner in possession of the Tea Estate measuring 464.29 acres. It was contended that it was purchased availing loan from Federal Bank Ltd. Aluva, and that the names of the O.P.(C) Nos. 3167 & 3440/2013 -7- plaintiffs were given for availing loan since it was stated that such loans would be sanctioned only to each individual and not in lump for the purchase of the estate. The further contention is that ever since the purchase of the estate by D2 (the second defendant), he is in exclusive possession of the said property, who is described in the sale deed as the original agreement holder. Thus, the 2nd defendant contended that he is in possession of the entire estate including the plaint schedule property. It is also stated by him that repayment of the loans were done by him alone and that no repayment of any loan was made by the plaintiffs. Though 'G' schedule property is also included in the plaint, it was contended that the owner of the said property is John Kurian (the nephew of the 2nd defendant) and he had not entrusted the plaintiffs to file a suit in respect of the 'G' schedule property.
O.P.(C) Nos. 3167 & 3440/2013 -8-
10. The main dispute is with respect to A to F scheduled properties. Defendants 2 and 3 even contended that the plaint schedule property was not purchased by the plaintiffs but the plaintiffs were only name lenders. Since the second defendant has been in possession of the property ever since the sale deed, the contention that the second defendant is only a Manager and that because of malfeasance, misfeasance and alleged defalcations the Managership of the second defendant was terminated by the plaintiffs is untenable, the 2nd defendant further contends.
11. It is vehemently argued by the learned senior counsel appearing for the defendants that the trial court as well as the lower appellate court went wrong in holding that the second defendant was only a Manager and that his Managership was terminated by the plaintiffs and so the 2nd O.P.(C) Nos. 3167 & 3440/2013 -9- defendant has absolutely no right to be in possession or enjoyment of the property. It is further argued that the lower appellate court has made an inconsistent finding with regard to the right of management of the second defendant. Though it was contended by the 2nd defendant in the counter statement that the plaintiffs are only name lenders and that (he) the 2nd defendant is the absolute owner in possession of the plaint schedule property, it seems; it was not pursued further. What ever that be, now it is contended that on the strength of the recitals/stipulations in the sale deed (Ext. P2 referred to in O.P. 3440/2013), which was marked by the trial court as Ext. A1, the second defendant is the only person who is entitled to be in possession and management of the properties. Ext. B1 is the agreement entered into between the second defendant and the first defendant who are the petitioners before this Court in the two Original Petition Nos.3167 and 3440/2013. It would appear from O.P.(C) Nos. 3167 & 3440/2013 -10- Ext. A1 sale deed that there was an agreement between the vendors and the second defendant and that was why the second defendant was described as original agreement holder in the various paragraphs mentioned in Ext. A1 sale deed.
12. Clause 1 of Ext.A1 sale deed would show that as instructed by the original sale agreement holder (D2) the Company (the vendor of the property) had conveyed and transferred its right, title and interest in the schedule property to the purchaser. Plaintiffs are the purchasers. The sale consideration was shown as Rs. 1,07,99,855/-. In clause 2 of the sale deed it is mentioned that the original sale agreement holder (D2), on behalf of the purchaser, had paid the advance amount and the balance amount was paid with the financial assistance of the Federal Bank Ltd. Aluva Junction Branch. Therefore, prima facie it can be O.P.(C) Nos. 3167 & 3440/2013 -11- said that the consideration amount was paid by the purchaser to the vendor through the 2nd defendant. The fact that the consideration was paid through the 2nd defendant will not alter the position since the consideration did flow from the purchasers though it was paid through the 2nd defendant.
13. On going through Clause 2 of Ext.A1 it can only be seen that the 2nd defendant had intervened or taken major role in the execution of the sale deed or facilitated the execution of the sale deed in favour of the plaintiffs; but that by itself will not confer on him any right over the property.
14. In the third clause it is mentioned that the vendor can transfer the property to the purchaser; (the plaintiffs). But it was stated that it was subject to the terms and conditions incorporated and mutually agreed between the vendor and the 2nd defendant. The last part of the O.P.(C) Nos. 3167 & 3440/2013 -12- sentence occurring in Clause 3 is to the effect that the property was transferred to the original sale agreement holder and purchaser as per the sale deed. Clause 4 is with regard to the protection that was to be given to the labourers working in that estate and the liability that would be cast on the purchasers with regard to the claims and demands for gratuity of the workers etc., who were the employees of the plaint schedule estate.
15. In clause 6 it was mentioned that the claims and demands of such employees shall be met and paid by the original sale agreement holder - the 2nd defendant and with the purchaser of the property. As per clause 9 the vendor had agreed and covenanted to indemnify the original sale agreement holder, as well as Purchaser against all loses, risk etc. In clause 10 of Ext.A1 sale deed it is mentioned that the 2nd defendant and the purchaser (plaintiff) shall hold and possess the schedule property and will effect the O.P.(C) Nos. 3167 & 3440/2013 -13- mutation of the plaint schedule property in to the name of the purchaser. The purchaser has covenanted with the original sale agreement holder that the purchaser shall not alter the physical nature and the topography of the scheduled property .
16. The learned senior counsel appearing for the defendants/petitioners are very much harping on clause 12 of Ext.A1 sale deed which reads thus:
"The Original Sale Agreement Holder shall always be entitled to carry out repairs and maintenance work in the Scheduled Property and to maintain the same and further to carry out other words, including additions, deletions or renovations in the Scheduled Property and that the Original Sale Agreement Holder shall have the right and liberty to harvest and sell the produce from the plantations, to do re-plantation of the O.P.(C) Nos. 3167 & 3440/2013 -14- same crop in the Scheduled property.
The Purchaser shall not do any commercial activities in the Scheduled Property. The Management of the Scheduled property shall be with the Original Sale Agreement Holder."
17. Exhibits A1 to A6 would clearly show that the plaintiffs are the persons having title to plaint A to F schedule properties. Those documents would also show that the 2nd defendant has not obtained any title to those properties. Plaintiffs were put in possession of the property covered by those title deeds. Clause 12 of Ext.A1 is the sheet anchor of the 2nd defendant who, harping on that clause, contends that he has got absolute possession of the property. It was observed by the courts below that going by the plea raised by the 2nd defendant it would appear that he is setting up title in himself in respect of the entire O.P.(C) Nos. 3167 & 3440/2013 -15- property stating that the plaintiffs are only name lenders. That may assume the character of setting up a claim of binami which, according to the plaintiffs/respondents, cannot be entertained at all. The stipulation in the sale deed that the 2nd defendant shall also have possession of the property along with the purchaser (the title holders) has been projected out of proportion by the defendants to contend that the 2nd defendant also has actual possession of the property.
18. It is submitted by the learned counsel for the plaintiffs that 'possession' mentioned therein has to be understood in the sense that the 2nd defendant was given the right of management of the estate. An agent or person managing the estate will also have possession to the limited extent of managing the property but such a possession cannot be reckoned as possession in the eye of law so as to contend that he can, by making use of such recitals in the O.P.(C) Nos. 3167 & 3440/2013 -16- document, get an order of injunction in respect of that property to restrain the plaintiffs having title to the property, from exercising such right or possession. It is stated that the 2nd defendant was the person who had at first entered into an agreement for purchase of the property with the vendor of the estate. It was also stated that loan was availed of from the Federal Bank for payment of consideration to the vendor of the estate.
19. The learned senior counsel appearing for the defendants/petitioners would submit that since clause 12 of the sale deed stipulates that the purchasers/plaintiffs shall not do any commercial activities in the scheduled property and since the management of the property shall be with the original sale agreement holder (the 2nd defendant), there was nothing wrong in the 2nd defendant entering into a contract with the 1st defendant for sale of green tea leaves since it was part of the management of the scheduled O.P.(C) Nos. 3167 & 3440/2013 -17- property. That argument may be attractive, but stipulation regarding the right of management of the scheduled property cannot be construed to mean that he can preclude the real owners/title holders of the property and induct the 1st defendant into possession of the property by entering into an agreement. In this connection, the agreement (Ext.B1(k) entered into by the 2nd defendant with the 1st defendant also can be referred to.
20. It was contended by the 2nd defendant that for the purchase of the estate no consideration was raised or paid by the family or anyone from among the plaintiffs and that the entire consideration was raised and paid by the 2nd defendant. It was also contended that the entire negotiation, finalisation and sale transactions were done by him on his own and expended money on his own. It was further contended that no single pie was raised or paid by O.P.(C) Nos. 3167 & 3440/2013 -18- any of the plaintiffs for drawing out the agreement for sale or for effectuating the same. Thus, he contended that the plaintiffs were mere name lenders, who had assisted the 2nd defendant, availing loan to purchase the estate. The contentions, as aforesaid, raised by the 2nd defendant would reveal his mind that he wanted to assert title over the plaint schedule property and deny the plaintiffs' title and possession over the property. That itself gave the cause of action for the plaintiffs to file the suit. In such circumstances, it cannot be said that the plaintiffs are not entitled to get an injunction against the 2nd defendant, who was acting detrimental to the interest of the plaintiffs and against the estate as well, the plaintiffs contend.
21. The fact that the 2nd defendant had such oblique motives is also discernible from Ext.B1(k) that it was in order to defeat the right of the plaintiffs, he entered into an O.P.(C) Nos. 3167 & 3440/2013 -19- agreement with the 1st defendant incorporating therein such recitals which would even enable the 1st defendant to occupy the estate bungalows. The 1st defendant was allowed by the 2nd defendant to use two bungalows situated in the plaint schedule estate. Besides, the factory and the office room situated in the estate were also allowed to be used by the 1st defendant. These are pointed out by the plaintiffs to fortify their contention that the 2nd defendant was acting detrimental to the interest of the plaintiffs and the plaint schedule estate and so if the 2nd defendant is allowed to continue in management of the plaint schedule estate, the entire estate will be ruined. Not only that the 2nd defendant has even stated that the 1st defendant would have right of preemption in case of sale of the estate. In such circumstances it can never be said that the 2nd defendant can be allowed to possess the plaint schedule estate. O.P.(C) Nos. 3167 & 3440/2013 -20-
22. It was held by the Hon'ble Supreme Court in Puran Singh v. The State of Punjab - AIR 1975 SC 1674 that an occupation of the property by a person as an agent or a servant at the instance of the owner will not amount to actual physical possession. It is trite law:
"i. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
ii. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
iii. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. O.P.(C) Nos. 3167 & 3440/2013 -21- iv. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
v. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession."
23. As per Ext.B1(k) agreement the 2nd defendant had agreed to sell and the 1st defendant had agreed to purchase the entire green tea leaves cultivated and harvested in the plaint schedule estate and the period of agreement was fixed as five years commencing from 15.02.2013. The management fee stipulated in the agreement and other clauses stated in the agreement have been pointed out by the learned counsel for the plaintiffs in support of the plea that those stipulations would run counter to the interest of O.P.(C) Nos. 3167 & 3440/2013 -22- the plaintiffs and are totally detrimental to the estate, and would amount to absolute surrender of the estate to the 1st defendant.
24. In clause 16 of the said agreement it was mentioned that in the event of Milgram Estate (the new name given to the plaintiff's estate) entering into an agreement by the 2nd defendant with a third party for such sale, the 2nd defendant shall give to the 1st defendant three months notice of his intention to sell the estate and offering the 1st defendant the first option to purchase the said estate. In other words, a right of pre-emption was given in favour of the 1st defendant. That was done by the 2nd defendant, who, prima facie has no title to the property.
25. It is also submitted by the learned senior counsel for the plaintiffs that the Commissioner's report would show that the estate was in a totally neglected condition during the period of management of the estate by the 2nd O.P.(C) Nos. 3167 & 3440/2013 -23- defendant and that after the management/agency of the 2nd defendant was cancelled, the plaintiffs themselves started to manage and maintain the estate.
26. Yet another argument that has been vehemently advanced by the learned senior counsel for the defendants/petitioners is that, as there is specific covenant in the sale deed executed and registered no parole evidence can be admitted to vary or contradict those terms in view of the inhibition contained in Section 92 of the Evidence Act. It is also contended that since the stipulation is that the 2nd defendant alone shall manage the estate and that the plaintiffs shall not interfere in the management of the estate by D2, that stipulation can be avoided only by executing a registered document. In support of that submission the learned senior counsel has relied upon the decision of the Supreme Court in M/s. Raval and Co. v. K.G. Ramachandran and others - AIR 1974 SC 818 and S. O.P.(C) Nos. 3167 & 3440/2013 -24- Saktivel v.M. Venugopal Pillai - AIR 2000 SC 2633.
27. This contention has been strongly resisted by the learned senior counsel appearing for the plaintiffs/respondents. As per the sale deed the plaintiffs/respondents are the title holders of the property. No title did vest in the 2nd defendant. The right of management or possession annexed thereto incorporated in the sale deed cannot be construed to hold that the 2nd defendant has title to the property or can possess the property indefinitely without any time limit nor can it be said that an absolute possessory right had been conferred on the 2nd defendant. On a proper construction of the document, it can only be discerned that the limited right of possession conferred on the 2nd defendant is only annexed to or forms part of the right of management given to him as per that document. Therefore, the stipulation contained in clause 12 and other clauses in the agreement cannot be blown up out O.P.(C) Nos. 3167 & 3440/2013 -25- of proportion to contend that the plaintiffs have absolutely no right over the property.
28. Exhibit A11 series are the letters sent by the plaintiffs to the 2nd defendant informing the latter that his managership of the estate was terminated. Those letters were sent on 21.2.2013. The 2nd defendant was also called upon to render true and proper accounts of the estate managed by him from the date of purchase of the estate. He was also told that he had cut and removed all the silver oak trees and so he had to pay damages for the waste committed by him. It was also pointed out that there were complaints that he had defaulted in paying wages to the workers. Some other allegations were also mentioned in those letters. It is argued on behalf of the plaintiffs that the employees had started agitation because they were not paid their due wages by the 2nd defendant. Later all the labour disputes had to be settled by the plaintiffs and thereafter O.P.(C) Nos. 3167 & 3440/2013 -26- the developmental activities were done by the plaintiffs and now the estate has regained its lost prosperity. It is also argued that by attempting to induct the neighbouring Tea Company (the 1st defendant), in fact the 2nd defendant wanted to ruin the whole estate and so that itself was sufficient to terminate the managership/agency of the 2nd defendant.
29. In the reply notices sent by the 2nd defendant it was stated that he is not a mere Manager. He denied that the estate belonged to the plaintiffs. It was stated in that letter that the plaintiffs have no right to say anything against the 2nd defendant. The observations made by the Advocate Commissioner in the report would also show that the estate was in an abandoned condition without being properly maintained or attended to.
30. It is vehemently argued by the learned senior counsel appearing for the defendants that since Ext.A1 and O.P.(C) Nos. 3167 & 3440/2013 -27- other title deeds make it clear that as per clause 12 the 2nd defendant shall always be entitled to carryout repairs and maintenance and that he shall have right and liberty to harvest and sell the produce from the plantations and to do re-plantation, it can never be said that it was only the managership that was conferred to him. It is argued on behalf of D2 that the last sentence in clause 12 - that the Management of the property shall be with the original sale agreement holder (the 2nd defendant) would scuttle the plea raised by the plaintiffs that the 2nd defendant is only a Manager or agent in management of the estate. It is also pointed out that as per clause 11 of the deed, the purchasers (plaintiffs) have covenanted with the 2nd defendant that the plaintiffs (the purchasers) will not alter the physical nature and topography of the scheduled property and so that recital would also make it clear that the plaintiffs had no right of management or possession over O.P.(C) Nos. 3167 & 3440/2013 -28- the estate.
31. A reading of the whole document would make it clear that the right conferred on the 2nd defendant was only the right of management which would tantamount to the right of care-taker, the learned senior counsel for the plaintiffs submits. It is vehemently argued by the learned senior counsel for the 2nd defendant that unless a registered document is executed, the right of the 2nd defendant over the said property will not be lost at all. Prima facie that argument does not appeal to me.
32. It is vehemently argued by the learned senior counsel appearing for the 1st defendant that huge amount was paid by the 1st defendant - Company (petitioner in O.P. No. 3167/2013) to the 2nd defendant for the green tea leaves agreed to be given by the 2nd defendant and that if injunction is granted the 1st defendant will suffer huge and irreparable loss. It is a case where the plaintiffs would O.P.(C) Nos. 3167 & 3440/2013 -29- suffer substantial injury if the 2nd defendant is allowed to take green tea leaves. Since the plaintiffs are the title holders entitled to be in possession of the property, once the right of management is terminated, it cannot be said that the 2nd defendant has got any right to collect the green tea leaves.
33. It is argued on behalf of the plaintiffs that if the 1st defendant is aggrieved he has got right to proceed against the 2nd defendant. It is not something that is irremediable. So far as the plaintiffs are concerned, damages cannot be an adequate remedy and so injunction cannot be refused. Irreparable injury would be caused to the plaintiffs, the real owners of the property, if they are not allowed to enjoy the plaint schedule property. The plaintiffs could establish that the balance of convenience is in their favour. Irreparable loss and injury that may be caused to the plaintiffs, in the event of withholding the relief of temporary injunction, will O.P.(C) Nos. 3167 & 3440/2013 -30- exceed that of the defendants. True that an injunction will not be granted where the plaintiffs have remedy by way of damages. But when the injury is irreparable and substantial that could never be adequately remedied or repaired. Relief of damages in the particular case cannot be an adequate recompense. I find that the lower appellate court was perfectly justified in confirming the order of injunction passed by the trial court in respect of the properties shown in A to E schedule to the plaint.
34. However, in order to ensure proper accounting of the income and expenditure of the estate so as to make use of the same at the time of trial, if found necessary, I find it just and convenient to appoint the 1st plaintiff as the party receiver who will hold and possess the property and will maintain the estate and take income therefrom. The green tea leaves and the processed tea collected by the 1st defendant and retained by him, shall be handed over to the O.P.(C) Nos. 3167 & 3440/2013 -31- 1st plaintiff, who will account for the same. The 1st plaintiff - the party receiver has to submit report regarding the assumption of charge as the party receiver and will submit the periodical report before the trial court. The trial court will issue necessary orders and directions as and when applied for by the receiver.
35. It is made clear that the observations made by this court in this judgment and the observations made by the courts below are intended only for the disposal of the application for injunction. The trial court will dispose of the suit untrammeled by any of those observations.
The aforesaid original petitions are disposed of as above.
Sd/-
N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj